City worker’s water use doesn’t wash (Legal View)

Tampering with home water meter was theft that struck at heart of employer’s interests
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 05/06/2014

An arbitrator has upheld the firing of an Ottawa city worker who was caught tampering with the water meter in his home over a period of several years.

The 46-year-old worker was an operator-in-charge in the water distribution section of Ottawa’s drinking water services department. His responsibilities included directing a handful of employees in the installation, repair, maintenance and operation of the city’s water distribution system. The worker began his employment with the City of Ottawa in 1990.

On Jan. 30, 2012, Ottawa’s deputy city treasurer received an anonymous written complaint that claimed the worker had been “stealing water for years” by modifying the water meter at his home so it didn’t accurately record water use.

The complaint also said the worker had helped others alter their meters in a similar way.

The deputy treasurer reported the complaint to the city’s fraud and waste hotline and auditor general. An investigation was launched involving the city departments of finance, corporate security, labour relations and environmental services, and consultation with the Ottawa Police Service.

The investigation included a review of the worker’s water consumption at his home. An advanced meter infrastructure (AMI) — technology that transmits water meter readings directly rather than having someone read the meters manually — was installed at the worker’s residence in May 2012.

Water usage at the worker’s home was tracked from April 2012 to December 2012 and for about one-half of each month — sometimes as many as 20 days — no water usage was recorded.

On Dec. 19, 2012, a finance specialist went to the worker’s home with two police officers. The worker spoke to the lead detective and admitted to tampering with his water meter so it didn’t accurately record his usage.

After being reassured he wouldn’t be charged with a criminal offence, the worker allowed the officers and the finance specialist into his home where the finance specialist examined and replaced the water meter. The worker also said he had helped two other people tamper with their water meters, according to the detective.

In January 2013, the city sent the worker an invoice for almost $3,500 to cover unreported water consumption over the previous five years and the replacement of the damaged water meter. He paid the full amount.

Employer interview

On Feb. 14, the city interviewed the worker about the water meter tampering. The worker admitted to disengaging the meter for the past four years to reduce the amount he would be charged whenever his pool was being “topped up” and on heavy laundry days — his wife provided in-home daycare services.

The worker also admitted to tampering with the water meter at his previous residence for “a couple of years.”

He acknowledged that he was aware such tampering was wrong and apologized, saying he was “just trying to get ahead.” He admitted that if he hadn’t been caught, he would have probably continued tampering with the meter. He denied helping anyone else tamper with their water meters.

Ottawa’s manager of drinking water services decided that although the worker had 23 years of service without performance issues or previous discipline, the nature of his theft and the years over which it had occurred were a breach of trust that irreparably damaged the employment relationship.

The worker’s employment was terminated on March 5, 2013.

Three months later, the worker pled guilty to a bylaw offence of interfering with a water meter. He received a $500 fine.

Water usage reviewed

After the worker was dismissed, the city performed a further review of the water usage at the worker’s previous residence going back to 2000. Similar patterns were revealed and another invoice was sent to the worker for $3,400 for unreported water usage. The worker paid this invoice as well.

The worker grieved his dismissal, arguing the new technology for water meters would have prevented him from tampering any further and he would have stopped around the time he was caught anyway.

However, in the hearing, he admitted he turned off the meter more frequently than just for the pool or heavy laundry; he would also do so to offset the cost of any new family purchase. This happened with increasing frequency, borne out by how often no water usage was recorded at his home.

The union also argued the worker’s actions occurred outside the workplace and were not in direct context of his employment — he didn’t have direct involvement with water meters. In addition, the union pointed out the worker was allowed to continue in his position from the date of his admission of tampering in December until his termination on March 5.

The worker also acknowledged his misconduct and paid full restitution to the city when it invoiced him for the unreported usage, said the union.

Employer rights

However, employers have a right to expect employees to be “trustworthy and honest, especially when they occupy a position of trust,” said the arbitrator.

The nature of the worker’s dishonesty was particularly troubling as it struck at a fundamental aspect of his employer’s business and was stretched out over a long period of time, said the arbitrator.

“This is not a case of momentary aberration where the (worker’s) judgment went briefly askew; but rather the behaviour is marked by its protracted and premeditated nature,” said the arbitrator.

“The (worker), over a 13-year period, with forethought and planning, defrauded his employer of monies that it was otherwise entitled to.”

The fact that the misconduct happened off-duty, didn’t necessarily affect his job duties and the worker was allowed to work while his conduct was investigated did not change the fact he committed theft directly against his employer, said the arbitrator.

Though the worker expressed contrition at his actions and paid the money back, he showed a tendency to minimize his actions, such as saying he was just trying to “get ahead” and minimizing how often he tampered with the water meter, said the arbitrator.

In addition, the worker’s denial that he told the detective he’d helped others tamper with their water meters was a direct contradiction of the detective, who had no reason to lie, said the arbitrator.

The dismissal was upheld, with the arbitrator finding the city had just cause from the repeated “serious disciplinary offence of theft” against its direct interests.

For more information see:

Ottawa (City) and Ottawa-Carleton Public Employees Union, Local 503 (Kingsbury), Re, 2014 CarswellOnt 3153 (Ont. Arb.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business point of view. He can be reached at Jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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